P. N. Jamaludheen v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** ## **TUESDAY, THE 5TH DAY OF FEBRUARY 2013/16TH MAGHA 1934** ## **Bail Appl..No. 9512 of 2012 ()** **-----------------------------(CRIME NO. 643/2012 OF BALUSSERY POLICE STATION , KOZHIKODE DISTRICT)** **----------------------------------------** **PETITIONER/ACCUSED:** **------------------------------------** **DR.P.N.JAMALUDHEEN, S/O.LATE ABDURAHIMAN MOULAVI,AGED 39 YEARS, NADUTHODIYIL HOUSE,PULIKKAL P.O., MALAPPURAM DISTRICT.** **BY ADVS.SRI.K.M.FIROZ SMT.M.SHAJNA** **RESPONDENT/COMPLAINANT/STATE:** **----------------------------------------------------------** **THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, BALUSSERY POLICE STATION,KOZHIKODE DISTRICT, THROUGH THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.SHIBU JOSEPH** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23-01-2013, THE COURT ON 05-02-2013 PASSED THE FOLLOWING:** **sts** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - ## B.A. No. 9512 of 2012 - - - - - - - - - - - - - - - - - - - - - - Dated this the 5[th] day of February, 2013. ## **ORDER** The petitioner is the sole accused in Crime No. 643 of 2012 of Balussery Police Station which as it stands now alleges that the petitioner has committed offences punishable under Sections 376 and 506(i) I.P.C. and Section 3(1)(xii) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. 2. The allegation against the petitioner is that while he was running a Clinic in the name and style K.M. Hospital at Nadapuram, he had employed the victim as a Nurse in his hospital and on the promise of marrying her, she was made to yield to his sexual desire, even though it was objected to by the victim. It is further alleged that even though she quit the employment from the said hospital, and worked in some other hospitals, due to the harassment of the petitioner, she had to return to his hospital at Balusserry which had started functioning from B.A.9512/2012. 2 2011 onwards. The victim would say that she was threatened and made to yield to his desires and she had no choice. 3. Based on the above complaint, the crime was registered under Section 376 and 506(i) I.P.C. Later during investigation, a further statement was taken from the victim and therein it was revealed that she belongs to the lower strata of the society and therefore offence under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act was also added. 4. Learned counsel appearing for the petitioner pointed out that the petitioner is qualified to be functioned as a doctor only in the year 2011 and the allegation that prior to that he has been running Clinics at various places wherein the victim has been engaged as a Nurse cannot be accepted. There is nothing to show that the petitioner had run any Clinic prior to 2011. It is also pointed out by the learned counsel for the petitioner that the present B.A.9512/2012. 3 complaint is a counter blast to the tip-off given by the petitioner to the Police that the victim in this case was functioning as a doctor though she was only a qualified nurse and on the basis of which she was apprehended and a crime was registered against her. Learned counsel for the petitioner would say that there is nothing to show that the allegations are true. 5. Learned Public Prosecutor at the outset contended that since the offence under Section 3(1)(xii) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act is alleged to have been committed, this court is precluded under Section 18 of the said Act from exercising its extraordinary jurisdiction in favour of the petitioner. Further, it was contended that investigation is only at an infant stage. 6. It is true that at the time when the matter was taken for for hearing, the offence under Section 3(1)(xii) has also been incorporated. But one has to notice that in the B.A.9512/2012. 4 initial complaint laid based on which the crime was registered, there are absolutely no allegations attracting the provisions of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. Initially the crime was registered only for offences punishable under Sections 376 and 506(i) I.P.C. During investigation it came to light that the victim belonged to the lower strata of the society and therefore the provisions under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act was added. 7. The Apex Court had occasion to consider a similar situation in the decision reported in **Vilas Pandurang Pawar v. State of Maharashtra** (2012(4) K.L.T. SN 28). True, there the court held that if the allegations disclose an offence under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, the court is precluded under Section 18 of the Act from exercising the extraordinary jurisdiction under Section 438 Cr.P.C. But what is significant and what is to be noticed is that the Apex B.A.9512/2012. 5 Court held that the allegations necessary to attract the provisions of the Act should be present in the initial stage itself, i.e. In the complaint which gave rise to the registration of the crime. If the allegations in the initial complaint which led to the registration of the crime does not contain materials in that regard, then the bar under Section 18 may not apply. The Apex Court has specifically observed that it is impermissible for the court at the time of considering the bail application to go into the materials collected during investigation and to ascertain whether the offence under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act is made out. 8. As already stated, in the case on hand, the initial statement given by the victim contains no statement that she was subjected to the objectionable act by the petitioner knowing that she belonged to the lower strata of the society or she was a member of Scheduled Caste or Scheduled Tribe or that the petitioner had taken undue B.A.9512/2012. 6 advantage of that situation. It was on the basis of the materials collected during investigation that the offence under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act was incorporated. In the light of the decision of the Apex Court, the contention raised by the learned Public Prosecutor that since offence under the provisions of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act is incorporated subsequently, this court is precluded from exercising its power under Section 438 Cr.P.C. cannot be accepted. 9. Coming to the merits of the case also, the grievance of the petitioner seems to be genuine. It is significant to notice that the victim in this case was apprehended for functioning as a doctor in a hospital run by another person though she was only a quantified Nurse. The records indicate that she was implicated on a tip-off by the petitioner. On interrogation she has stated that it was at the behest of the petitioner that she was employed by the B.A.9512/2012. 7 second accused in the crime in which she is the first accused. 10. One cannot omit to note that it was long thereafter that on 27.11.2012 the complaint was laid by the victim accusing the petitioner of having committed the heinous crime. 11. The petitioner has produced documents to show that he acquired the qualification to function as a doctor in the year 2011 and prima facie, there is nothing to show that he has been running Clinics prior to that date. The definite case of the victim is that she has been employed by the petitioner in his clinic run at various places long prior to 2011. As of now, there are no materials to support the said case. The definite case of the victim is that she was repeatedly subjected to sexual assault by the petitioner exercising threat and coercion, the last of which was on 15.9.2012. B.A.9512/2012. 8 12. However, the medical records seen in the CD throw considerable doubt regarding the version of the victim. Though the medical records show that there is evidence of penetration, the positive observation in the records would show that there is no evidence of rape or sexual assault. The statement of the doctor is also to the same effect. Under the above circumstances, the claim of the petitioner that he is falsely implicated in the crime cannot be simply ignored. 13. Considering the peculiar facts and circumstances of the case and various other circumstances, it is felt that this is a fit case where the extraordinary jurisdiction needs to be exercised in favour of the petitioner. Therefore, this application is allowed on the following conditions: i) Petitioner shall surrender before the Investigating Officer on or before 15.02.2013, who after interrogation shall produce him before the B.A.9512/2012. 9 JFCM court concerned, which court, on application for bail being moved by the petitioner, shall release him on bail on his executing a bond for a sum of Rs.15,000/- (Rupees Fifteen Thousand only) with two solvent sureties for the like sum each to the satisfaction of the said court. ii) The learned Magistrate may ensure the identity of the sureties and the veracity of the tax receipts produced by the sureties for the purpose of executing the bond. iii) Petitioner shall report before the Investigating Officer on every Thursday between 9 a.m. and 10 a.m. till final report is laid. iv) Petitioner shall surrender his passport before the Magistrate court concerned, and if he does not possess a passport, an affidavit to that effect shall be filed before the court concerned. 10 B.A.9512/2012. v) Petitioner shall not leave the State of Kerala without the permission of the Magistrate concerned. vi) Petitioner shall not tamper or attempt to tamper with the evidence or influence or try to influence the witnesses. vii) If any of the conditions is violated, bail granted to the petitioner shall stand cancelled, and the JFCM concerned may take such steps as are available to him in law. P. BHAVADASAN, JUDGE sb.